Fellow justice wants probe into meeting

Topeka  In an unprecedented move, Kansas Supreme Court Chief Justice Kay McFarland on Monday called for an investigation into what fellow Justice Lawton Nuss said to two senators about the pending school finance case.

"The public trust and confidence in the judiciary is vital to our system of government," McFarland said in a prepared statement.

She said the allegations of inappropriate communications by Nuss should be investigated by the Commission on Judicial Qualifications, a 14-member board that investigates alleged judicial misconduct and makes recommendations for discipline.

Ron Keefover, a spokesman for the court, said it was the first time in memory that a chief justice has sought a probe of another justice on the court.

The judicial commission's next meeting is May 5.

Last week, it was disclosed that Nuss had lunch March 1 with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina.

At the lunch, Nuss discussed the school finance lawsuit, the most high-profile case before the court.

Nuss recuses himself

When the lunch meeting was about to be made public Thursday, Nuss announced he would recuse himself from future dealings in the lawsuit.

The decision, he said through Keefover, was to avoid the appearance of impropriety "even though there was no discussion with the senators of what amount of funding might eventually be acceptable to him or to the court as a whole."

But that has not satisfied some lawmakers who have said Nuss violated a basic tenet of law by talking with parties in a pending lawsuit outside the courtroom.

House Speaker Doug Mays, R-Topeka, has said he is considering a legislative investigation, and the attorney general's office has interviewed several legislators about what was said at the lunch.

If the Commission on Judicial Qualifications finds convincing evidence to support allegations, it can warn the judge, tell the judge to stop what he or she is doing or recommend the state Supreme Court discipline the judge. Discipline could range from public censure to suspension or removal.

Morris declined to comment on McFarland's statement.

But earlier in an interview Monday, Morris said nothing improper was discussed at the lunch at Carlos O'Kelly's.

Morris said Nuss had prepared a table that had columns showing the amount of school funding called for by a consultant study, a legislative study and a proposed House plan.

"He didn't realize that the House plan was cumulative. He was glad to know how it worked," Morris said.

Morris said he noted that state leaders had said earlier in the session that they hoped to produce a bipartisan school finance plan. "He (Nuss) picked up on that and said that sounded good to him," Morris said.

The conversation on school finance lasted about five minutes, Morris said. He said Nuss' comments had had no influence on him.

The Kansas Supreme Court has ruled the school finance system unconstitutional and ordered the Legislature to increase funding and change the ways funds are allocated to help poor students more.

Last year, lawmakers increased school funding by $290 million to push appropriations to more than $3 billion. They will return Wednesday for a wrap-up session to decide how much more to increase funding.

Work of commission

Karl Peterjohn, executive director of the Kansas Taxpayers Network, said he was glad to hear of McFarland's request, but he noted that much of the Commission on Judicial Qualification's work is done behind closed doors.

"I wish there was an open forum and discussion to provide a way of maintaining appropriate behavior among some of our top state officials," Peterjohn said.

Last year Peterjohn had filed a complaint against Nuss with the Commission on Judicial Qualifications, saying Nuss should have recused himself from the school finance case because Nuss was formerly an attorney with the law firm that represented one of the main plaintiff school districts.

The commission, however, dismissed Peterjohn's complaint.

McFarland said the commission was "fully equipped to conduct whatever fact-finding may be needed to determine whether any of the Canons of Judicial Conduct have been violated."

Because of the seriousness of the allegations, McFarland said, the commission should "conduct a thorough examination as expeditiously as possible."

In the meantime, Nuss continues working on the bench. The court heard arguments in several cases Monday.

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Comments

Again, there appears to be nothing substantively wrong with Nuss' actions but the appearance created is improper.

Peterjohn simply reveals that his 'opinion' is agenda-driven - he fears (or now, feared) Nuss' vote on an issue that seems likely to require higher taxes, which Peterjohn is paid to avoid. It seems perfectly clear that if Nuss had been a vote against funding public schools Peterjohn would be making excuses for him.

How judges conduct themselves while in office should not be evaluated on the basis of their judicial determinations but by the objective facts of their actions. Nuss should not have met privately with anyone involved with the case regardless of the content discussed. He has recused himself from further consideration of this case. If further investigation finds that discussions went beyond 'clarification' of facts then public censure is probably deserved. But there is nothing to support anything further here.